F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 4 2000

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
DALE LEROY HODGES,

No. 99-6380
(D.C. No. 99-CR-79-M)
(W.D. Okla.)

Defendant-Appellant.
ORDER AND JUDGMENT

Before TACHA , McKAY , and PORFILIO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

In this direct appeal, defendant Dale Leroy Hodges challenges the propriety
of his sentence following conviction for maintaining a place for manufacturing

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

a controlled substance, in violation of 21 U.S.C. 856(a)(1), and for money

laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i). Specifically he argues
that the district court erred in enhancing his sentence two levels for possession
of a firearm pursuant to USSG 2D1.1(b)(1), and by failing to grant him
a downward departure under the safety-valve provisions of USSG 5C1.2.
We affirm.
BACKGROUND
Mr. Hodges was arrested while he was tending marijuana fields located on
his property. The property had been under surveillance by law enforcement
authorities for several months. Contemporaneous with his arrest, federal and state
authorities executed a search warrant at this location, which also included a
residence. A well-worn path led from the residence to the marijuana field.
Mr. Hodges had also been observed entering and leaving the residence.
Inside the residence, agents found equipment used for the production and
processing of marijuana. The agents also found the three firearms which form the
basis of the enhancement. The residence previously had been occupied by an
individual other than Mr. Hodges. This person had moved out approximately one
week before the search warrants were executed and was the only one who had
been seen by the authorities handling the firearms.

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Mr. Hodges pled guilty pursuant to a plea agreement. At the sentencing

hearing, the district court granted the governments motion for a downward
departure based on substantial assistance, enhanced the sentence for possession of
a firearm pursuant to 2D1.1(b)(1), and determined that Mr. Hodgess request for
a downward departure based on the safety-valve provisions found in 5C1.2 was
moot. Mr. Hodges appeals these last two determinations.
DISCUSSION
We review de novo the district courts interpretation of the sentencing
guidelines while we use the clearly erroneous standard to review the trial judges
factual determinations at sentencing.

See United States v. Roberts , 980 F.2d 645,

647 (10th Cir. 1992). We give due deference to the application of the guidelines
to the facts. See United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999).
Section 2D1.1(b)(1) provides for a two-level increase in the base offense
level for certain drug-related crimes [i]f a dangerous weapon (including
a firearm) was possessed . . . . The government has the initial burden of proving
possession by a preponderance of the evidence.

See Vaziri , 164 F.3d at 568.

Constructive possession is sufficient to support the enhancement.

See United

States v. Payne , 81 F.3d 759, 762 (8th Cir. 1996) (It is not necessary that an
individual be observed using the weapon, and either actual or constructive
possession is sufficient,

i.e. , the individual must have exercised ownership,

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dominion, or control either over the firearm or the premises on which it is found.
(internal quote omitted)). Once the government meets this initial burden, the
burden shifts to the defendant to prove that it is clearly improbable that the
weapons were connected to the offense.

See Vaziri , 164 F.3d at 568.

It is undisputed that Mr. Hodges owned the property where the firearms
were discovered. Moreover, the firearms were found in close proximity to the
rooms used to grow and process the marijuana. Accordingly, we find no error in
the district courts imposition of the enhancement.
Mr. Hodges also contends that the district court erred in concluding that,
because it had determined that he was subject to the enhancement under
2D1.1(b)(1), the issue of whether he may receive the benefit of the safety-valve
provisions found in 5C1.2 was moot. This argument is foreclosed by

United

States v. Hallum , 103 F.3d 87, 89 (10th Cir. 1996), a case this panel cannot
overrule. See United States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997).
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED .
Entered for the Court
John C. Porfilio
Circuit Judge

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